A year after Plan B change, access still hit-or-miss

When the Food and Drug Administration allowed the so-called "morning-after pill" to be sold over the counter last year, reproductive rights advocates felt they'd cleared a major hurdle in eliminating delays that diminish the drug's effectiveness.

But nearly a year after the emergency contraceptive Plan B became easier to purchase, obtaining it without a prescription remains a hit-or-miss proposition for some women.

Inconsistent or confusing state laws and store policies, along with some pharmacists who won't dispense it for religious reasons, are complicating and sometimes blocking access to the drug.

FDA restrictions on how the drug is sold without a prescription are contributing to the problem, experts said. The agency requires Plan B to be stored behind the pharmacy counter rather than on store shelves, and buyers must be at least 18 years old and must prove it with government identification.

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These restrictions permit pharmacy employees to block access to the drug, whether mistakenly or because of their personal objections. As a result, some noncitizens are being asked to produce government photo IDs, when photos aren't required, and some men are told that only women can buy the drug.

"We knew the (FDA) restrictions would cause a whole host of problems, some of which we hadn't even foreseen, so it's not a surprise that women are still encountering refusals," said Gretchen Borchelt, an attorney with the National Women's Law Center in Washington.

In some cases, pharmacists with personal objections aren't stocking the medication, won't fill or refill prescriptions and won't tell customers how to get the drug elsewhere. In small towns with few options, that can cause delays that greatly diminish the drug's effectiveness.

"We know we're seeing it more, but there's no way to really know whether it's increasing or if the women are reporting the incidents more," said Jackie Payne, the government relations director for the Planned Parenthood Federation of America.

Each year, roughly 3 million unintended pregnancies occur in the United States. About half are due to lack of contraception and the other half to contraception failure or misuse, according to the Guttmacher Institute. Some 25,000 to 32,000 unwanted pregnancies each year are the result of rape. About 42 percent of unintended pregnancies end in abortion.

Plan B, the only emergency contraceptive sold in the United States, is basically a higher dose of the hormones contained in conventional birth control pills. Plan B blocks the release of an egg from the ovaries or prevents a fertilized egg from being implanted in the uterus.

When taken within 72 hours of intercourse, the drug blocks conception with 89 percent reliability. It doesn't induce abortion and doesn't terminate pregnancy.

However, some see its use as a moral question.

Recognizing that, the American Pharmacists Association recommends that any pharmacist who refuses to dispense a drug because of moral objections allow a co-worker to do so, or refer customers to drugstores that will fill their orders.

"We don't have a problem with that. We consider it a religious liberty issue," said Francis Manion, senior counsel at The American Center for Law and Justice, a conservative legal organization that represents pharmacists who were suspended or fired after allegedly violating store policies on Plan B.

In an e-mail response, Carol Cox, a spokeswoman for Barr Laboratories, which makes Plan B, said the company expected "pharmacists who refused to dispense any FDA approved medicine to make the appropriate arrangements to ensure that approved FDA pharmaceutical products are available to patients at the point of purchase."

Many national pharmacy chains - such as Walgreens, Rite Aid, CVS and Wal-Mart - have such policies. These chains and five others have earned a "thumbs up" grade from Planned Parenthood for policies that ensure the availability of Plan B in their stores, on demand and without discrimination or delay.

But experts say those policies aren't always clear, nor are they always followed.

Earlier this year, Carrie Baker, a 42-year-old mother of two, couldn't get Plan B from her Kroger supermarket in Rome, Ga. She said the pharmacist said that she wouldn't stock the drug or order it because she didn't believe in abortion - though Plan B doesn't induce abortion.

"It was very frustrating," said Baker, the director of the women's studies program at Berry College. "I'm a loyal customer spending $100 a week at that store for over 10 years and here they treat me like a sinner, not respecting me enough to make my own decisions about my family and my life."

In response, Kroger reiterated its policy to carry the drug in all stores and to allow, but not require, co-workers to complete the transaction when a pharmacist objects.

"We are trying to be respectful of the religious and moral beliefs of our employees and the legal, privacy and consumer rights of our customers," Kroger spokesman Meghan Glynn said in an e-mail response.

Arizona, Georgia, Mississippi and South Dakota have laws or rules that allow pharmacists not to fill prescriptions if they have moral, religious or personal objections. This year, nine other states introduced similar legislation: Indiana, Missouri, New Jersey, North Carolina, Rhode Island, South Carolina, Texas, Vermont and West Virginia.

Six states restrict pharmacists from refusing to dispense lawful medications: California, Illinois, Maine, Massachusetts, Nevada and Washington. Five others - Delaware, New York, North Carolina, Oregon and Texas - allow pharmacists not to dispense a medication but require them to refer customers to pharmacies that will.

In December, a Rite Aid pharmacist in Seattle refused to sell Plan B without a prescription to 26-year-old Grace Stering, though the store had it in stock. Stering said the pharmacist told her he thought it was wrong to sell it.

"He literally said that to me. I was astonished," Stering said. "I was appalled by the way he treated me as a person. I mean you could literally sense the judgment."

After she asked him where she could purchase it, the pharmacist suggested a nearby pharmacy, where Stering later bought it. But she wasn't finished with Rite Aid.

When she got home, she got on the Internet, where she found and contacted the National Women's Law Center. "That's when I realized how angry I was. I was typing and crying at the same time," she said.

The law center contacted Rite Aid officials, and several company representatives apologized, Stering said. The company reprimanded the pharmacist and retrained the employees on company policy, which calls for another employee to provide the product if a pharmacist refuses.

"I was really happy with the outcome," Stering said.

Not all problems with Plan B involve women. Galen Leigh Sherwin, the acting director of the Reproductive Rights Project of the New York Civil Liberties Union, said her organization got a complaint from a medical school instructor who wanted to use Plan B for a class demonstration.

A pharmacist told him he couldn't purchase it because he was a man. There's no sex restriction on over-the-counter sales as long as the buyer is at least 18.

"It's mostly things like that, where pharmacists just don't know the rules yet," Sherwin said. "They don't understand the age requirements and they don't understand the documentation requirements."

Hispanic health advocates say that some undocumented Hispanic woman are being denied the drug over-the-counter after wrongly being required to produce government IDs with photos.

"That's actually a really big concern for us," said Jessica Gonzalez-Rojas, the director of policy and advocacy at the National Latina Institute for Reproductive Health in New York City. "We want to make sure our community can access this drug, but there's some question about what constitutes a government ID. Can they use a Medicaid card? Can they use a government-issued ID from their home country? It doesn't specify."